Jeff Segal, MD, JD, FACS
I was thumbing through General Surgery News recently and read an article espousing a great idea; an idea worth spreading. Philip Schaurer, MD, and Jim Saxton, Esq. wrote about adding a spouse’s name to the informed consent document. Informed consent, of course, is a process, and not a document. But, by engaging the family, you address several issues.
Sometimes the person filing a lawsuit is not the patient, but a family member. The patient might be incapacitated, unresponsive, or even dead. Sometimes the spouse, left out of the loop, might have objected to the procedure being performed – perhaps because of risk; perhaps because of cost; or perhaps a million other reasons. Securing the spouse’s buy in can go a long way to preventing a lawsuit or ending a lawsuit once filed.
Words that occasionally pass a spouse’s lips: “I must have told my husband fifteen times that the surgery was a mistake. It was too risky. And the problem being solved was not that bad.” Or “I had no idea that this surgery was anything other than routine.” You get the picture.
When a spouse’s signature is embedded in the informed consent document, such statements lack any credibility. More important, the process engages a family member to understand the risks, benefits, and options, ask pointed questions, and manage expectations.
If a spouse refuses to sign, then you will be alerted, up front, that there may be challenges down the road. Better to learn that today — than down the road.
Obtaining a spouse or family member’s consent may not always be appropriate. Sometimes a patient might not want their spouse to know they are having a procedure done. Also, many procedures are low risk and the extra time required to bring all parties on board might be an inefficient use of time and resources. But, the riskier the procedure and the more options available to treat a condition, the more it makes sense to expand the signature line.
What about obtaining and informed consent when undergoing cosnetic surgery such as a facelift. Many patients does want their spouses to know everything they are having surgery for.
Dear Dr. Segal,
Better than another signature on the consent form, would be the inclusion of discussion with the patient and spouse about the risks, benefits, alternatives and risk of alternatives in the surgeon’s pre-opearative H & P or progress note. The best of these also states that all questions from the patient “and spouse” were answered and the patient and spouse agreed to proceed with the proposed operation.
That kind of process, communication and documentation will serve the surgeon much better than another signature placed on the consent form on the day of the procedure.
I agree with Dr. Ashley, but I think the inclusion of documentation of the informed process AND and additional signature is wise. I perform cosmetic procedures so I’m sensitive to the concerns voiced here. You may be handcuffed in the cases where the patient wants sole confidentiality, however, that scenario would be a huge red flag for me.
In the case of cosmetic patients whom would not like to enroll family member in this process because of confidentiality, would wordings such as ” patient offered to have family members partcipating in pre/post surgical care & discussion but declined” in the informed consent be worthwhile?
The issue of informed consent has to do with the right of the individual to be made aware of all risks inherent in procedures which will disturb the integrity of the individual’s body. I don’t see that you can bind third parties/family members by also making them sign the consent. Instead, physicians should focus on learning how to actually give informed consent, spend time addressing any concerns and then document the conversation.
I am a neurosurgeon and go beyond having the spouse sign the consent. I make up specific consents for all my procedures. I have developed consent DVD videos I made myself going over all possible risks and complications, but also add a disclaimer that the risks and complications discussed in this video may not include all possible risks or complications. I document that the patient, spouse, family member watched the video, and that they were provided a copy of the written consent and additional questions were answered by the patient/family. Thus, if a patient or family member ever claimed that they were not told of a particular complication/risk then all I have to do is present the consent video. I also put the same consent videos on my website so remote family members can view the video. I have found that patients are much better informed and as well I am more productive with my time when they are watching the video.
This is a very BAD idea. As a provider who cares for pregnant women, I see how our society treats women as chattel. Furthermore, in terms of obstetrics, our society sees women as “incubators” for their spouses’ unborn children. Consent should only be for the person undergoing the procedure. If not, we will force women to undergo or not undergo procedures as others see fit. If you are worried about being sued, you have two choices. One is to practice better medicine, and if you get sued, at least you can say to yourself, “I did the best I could.” The other is to not practice medicine.
Dr. Siegal,
Good advice..I’ll use it.
These are all good suggestions. With HIPPA being the way it is, at every visit I have my staff document if a family member or friend accompanies a patient (eg.”here with sister angela”), and agree with Dr. Ashley and document discussions with patient “and spouse/family member”. I often have the family member witness the patients’ signature on the consent. While it does not guarantee anything, it does imply a more informed involvement of the family/support system. If I get the feeling that the patient may be a problem, after a thorough discussion I will ask if they have any further questions, and when they say no, I have them initial the specific line on the consent where it says all questions have been answered and a thorough discusion has been had. For cosmetic consents I have also added a separate line which I have the patient initial which states ‘I am aware if I do not follow Dr. Bunin’s instructions regarding pre and post-operative care that I may worsen the results”. This helps to emphasize that this is a team effort between myself and them and they need to do their part to help healing, and has helped me with post-op compliance and wound care.
The idea of spousal consent is sound, but may present legal pitfalls. I was involved in a case where the spouse did not want the surgery and the patient did. The surgeon was upset and postponed the surgery as he felt a bit shook up at the time. The hospital administration informed us that if we had canceled the patient’s surgery based on the spousal response it would have been a violation of the patient’s rights. By extension, even knowledge of the surgery by the spouse, if the patient wanted privacy, might be a violation of HIPPA. Might need one more line where the patient consents to the spouse being informed??
As a plastic surgeon who performs cosmetic surgery, I also run into the issues noted above about patients hiding procedures from spouses. My staff makes an effort for patients to bring their significant others to the consultation or at least the preop visit. The patients are give an extensive consent that was developed by the American Society of Plastic Surgeons. I dictate all my notes and note that the patient and the significant other had the opportunity to review the consent and ask me questions, and that I addressed their concerns. I have found that this engages both people nicely.
I am a plastic surgeon who has been in practice for over 30 years. I agree with Dr.Brancazio about how this would be of little help with potential litigation. I have are represented physicians in lawsuits. Well documented informed consents may be of some help, but at the same time accomplish little in preventing lawsuits when a major complication ensues. (You might eventually win)
What would happen if a patient comes to the surgeon requesting a cosmetic procedure, and the spouse declines to give consent? What about the right of an individual to make up his or her mind without the determination of a spouse who may be in an abusive relationship?e
If your forms are preprinted leaving a space for the spouse, and it is left blank how would that affect potential litigation? If we extend the consent to include spouses, what about patients who are either divorced or widowed, and we do not include the executor of their estate, or children? These issues are difficult enough, especially in states where there has not been tort reform. Just practice good medicine, do what you think is right, and hopefully (but not always) this should suffice. And realize that if litigation follows and you have followed community standards this is just part of practicing medicine.
i aqree with the others here. i never do a complex procedure without the spouse and family being in the room when i go through things with the patient i also have my nursing staff present and use models. i like the idea of the video, so there is no question that all the highlights are discussed. too many times, docs say that things will be fine. not so. everyone needs to be on board. if you need the case that much, then go into another field.
Informed consent for the spouse may be a good idea. I know of malpractice cases where the spouse files for loss of consort due to the alleged injury. So having them involved in consent process would mitigate against this.
@Phil Reholt – While a a spouse may have a cause of action for loss of services, consortium, payment of medical expenses and/or loss of support, this is a derivative action and cannot be brought unless the spouse themselves has a cause of action.
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